Do You Place Your Mental Health At Issue When Seeking Sole Custody?

Maryland recognizes the importance of psychotherapist-patient privilege in cases where a parent seeks psychiatric help or counseling. This privilege keeps records confidential in many, but not all instances. The issue of your mental health can come up in a custody proceeding.

In a 2000 case, a mother sought sole custody of her two minor children. She had married in 1985 and worked as a paralegal. Her husband worked as an attorney. When they first married, she had a history of psychiatric treatment, which she continued to receive at her husband’s request through their marriage. The couple had two sons and separated and reconciled several times over the years. They saw a psychiatrist jointly for a period.

When they separated in 1995, they prepared an agreement, specifying joint guardianship, care and custody of their children, with the mother to have primary residential care of them. However, when she filed for divorce, she sought sole custody. Her husband sought sole custody in response.

The husband tried to discover the mother’s psychiatric treatment records. She refused to disclose files or answer deposition questions in connection with her treatment, citing the Maryland psychotherapist-patient privilege. He tried to compel the records and she answered by asking the court for a protective order.

The trial court partly denied the husband’s motion, but asked that post-1994 records be submitted for the court’s inspection. It also found that the mother had not waived psychotherapist-patient privilege by seeking sole custody. A year later, the trial court required the production of the mother’s records from 1995 onward.

The husband filed a motion for psychological examination. The mother opposed the motion on the grounds she had already produced records pursuant to the court’s order. The trial court denied the motion. Ultimately, it awarded sole legal custody to the petitioner. The husband appealed that decision and others.

He argued to the Court of Special Appeals that by arguing she was fit and proper for sole custody, the mother placed her mental health at issue and waived psychotherapist patient privilege. The Court of Special Appeals agreed and reversed on the grounds that the mental and emotional state of a parent was material and relevant.

The mother appealed to the Court of Appeals. The appellate court explained that people seeking psychiatric-mental health treatment should be assured that communications to their provider are protected under the law. It cited various letters from various counselors and judges explaining that privileged communication were especially important in contested child custody cases.

Often parents are trying to help their kids and compelling disclosure would cause parents not to seek that help. The appellate court explained that Legislature made a public policy decision not to exempt child custody cases from the privilege’s protection. The appellate court also looked at the law of other jurisdictions, which were divided on the issue of disclosure.

One state did find that mere filing of a custody action placed at issue a parent’s mental health. However, even some of these states found that there should be limitations on disclosure. The Maryland appellate court found that in most cases the trial court would have some information. If a parent voluntarily furnished mental health files to show fitness, that information would be available.

Courts had to balance the need to protect children at risk of abuse with the compelling police of facilitating treatment. Trial courts also have the option of exercising their discretion to order a mental health evaluation. Accordingly, the appellate court found that a parent seeking sole custody does not automatically he or she waives psychotherapist-patient privilege simply by making the request.

If you are dealing with sensitive child custody issues, contact an experienced Maryland family law attorney for representation. Our office may be able to help you through this difficult time.